Cambodian authorities should drop the prosecution of a human rights defender who raised concerns about the conduct of the judiciary in a land dispute case, Human Rights Watch said today.
July 29, 2015
Free Expression Includes Right to Criticize Judicial Conduct
(New York) – Cambodian authorities should drop the prosecution of a human rights defender who raised concerns about the conduct of the judiciary in a land dispute case, Human Rights Watch said today.
On May 15, 2015, judicial authorities publicly accused Ny Chakrya from the Cambodian Human Rights and Development Association (ADHOC) of defamation, malicious denunciation, and acting “to apply constraint upon the judiciary.” Together, the three offenses are punishable by up to a year-and-a-half in prison, plus fines. Three days earlier, Ny Chakrya had announced the filing of a formal complaint against a prosecutor and a judge for procedural irregularities in the prosecution of two local activists in a Siem Reap land case.
“People in Cambodia, as elsewhere, have the right to criticize government authorities, including court officials, without facing criminal charges,” said Brad Adams, Asia director at Human Rights Watch. “To imprison or otherwise sanction a human rights defender for bringing a complaint against Cambodia’s politically controlled and notoriously corrupt judiciary would be the height of hypocrisy.”
The allegations against Ny Chakrya arise from a land dispute in the Svay Loe district of Siem Reap province between villagers and the Takhmao Community Industrial Development and Agriculture Trading Company (TCIDA). Originally registered with the Ministry of Interior as a community organization in 1997, TCIDA re-registered with the Ministry of Commerce as a trading company in July 2010. TCIDA is part of a network of Cambodian, Korean, Vietnamese, Thai, and Singaporean companies with many agro-industrial interests in Siem Reap and other parts of Cambodia, including economic land concessions. According to statistics collected by Cambodian human rights organizations, Siem Reap has been the site of 107 land disputes since 2010, most of them involving land-grabs by government-linked and other business interests. Despite many legal challenges by affected villagers, none are known to have been successful.
In Svay Loe, villagers have settled and farmed an area called Chup Rumdeng since 2008, according to research by Cambodian human rights organizations. In 2010, TCIDA started cultivating nearby land. In 2014, the firm asserted a claim on Chup Rumdeng and began clearing it of villagers’ crops and planting its own. In August 2014, Siem Reap provincial authorities issued a notification that because TCIDA ownership was not clear, it was required to cease operations on the land until the matter was settled. However, the firm continued to clear the land, uprooting villagers’ crops while filing a lawsuit against them, alleging trespass and that the villagers had destroyed TCIDA crops. On January 3, 2015, a mixed force of police and gendarmes under the direction of then-Siem Reap Deputy Prosecutor Sok Keobandit went to Chup Rumdeng and attempted to arrest a number of villagers. They took two, Sok Boeun and Ven Lan, into custody, while others fled. TCIDA then occupied the disputed land.
The case was turned over to then-Siem Reap Investigating Judge Ky Reuthy. On April 27, he indicted six people to trial, including Sok Boeun and Ven Lan, who remained in custody. Two others, Srey Mut, and Sot Deang, absconded and were to be tried in absentia, while two other villagers were not arrested but made themselves available for court hearings.
ADHOC lawyer Puok Yaran represented Sok Boeun and Ven Lan in hearings that lasted until May 26. The trial judge acquitted two of the six of all charges, and dismissed the charges of trespass against all six. However, he found Sok Boeun, Ven Lan, Srey Mut, and Sot Deang guilty of aggravated criminal damage, sentencing Sok Boeun and Ven Lan to eight months and six months in prison, respectively. Taking into account time already served since their arrest on January 3, Ven Lan was released on July 3 and Boeun Sok is slated to be released early, in August.
Ny Chakrya’s Comments and Prosecution
On May 12, Ny Chakrya, ADHOC’s head of Human Rights and Legal Aid, convened a press conference with ADHOC lawyer Puok Yaran in Siem Reap. According to media reports, Puok Yaran stated that the detention of Boeun Sok and Ven Lan was contrary to the law and the facts. Ny Chakrya announced that ADHOC would file a complaint against Deputy Prosecutor Sok Keobandit and Investigating Judge Ky Reuthy with the Supreme Council of the Magistracy, the institution constitutionally mandated to oversee the functioning of the judiciary. He reportedly also said that ADHOC was seeking evidence of procedural irregularities in the detention of the Sok Boeun and Ven Lan to ascertain whether or not it arose from what the media characterized as “collusion” between judicial officials and TCIDA.
On May 15, the Siem Reap court prosecutor’s office responded with a public declaration accusing Ny Chakrya and Puok Yaran of “attacking” the prosecution as an institution and the deputy prosecutor as an individual, using “exaggeration” to disseminate “false news,” and “information of an insulting character.” Their intent, the declaration said, was to put pressure on the court during the course of a judicial investigation. Contesting this characterization of the issues, on May 20 Ny Chakrya filed a complaint against Ky Reuthy and Sok Keobandit with the Supreme Council of the Magistracy. After a second press conference the media reported that Ny Chakrya said that if it appeared that a judicial officer was “biased,” then it was right to expose this and that this could only be determined legally after a complaint was lodged with the Supreme Council of the Magistracy.
The Supreme Council of the Magistracy has not acted on the complaint, but on June 2, Sok Keobandit and Ky Reuthy filed a criminal complaint against Ny Chakrya with the Phnom Penh Court, alleging he had committed “public defamation,” “malicious denunciation,” and “publication of commentaries in order to apply constraint upon the judiciary” during a judicial process. After summonsing Ny Chakrya for questioning, a Phnom Penh court deputy prosecutor decided to institute criminal proceedings against him and forwarded his case to an investigating judge to conduct further investigations, which he began on July 13. The investigating judge is to ascertain whether there is sufficient evidence to charge him and, if so, whether to indict him for trial.
“Cambodia’s donors should pressure the government to respect its international legal obligations to ensure that criticism of the authorities is not met with imprisonment,” Adams said. “Misuse of the courts to shield the judiciary from public criticism will only lead to further public resentment, suspicion, and lack of faith for the courts and the government that has long controlled them.”
International Standards on Freedom to Criticize the Judiciary
Article 19 of the Universal Declaration of Human Rights states, “Everyone has the right to freedom of opinion and expression.” The International Covenant on Civil and Political Rights (ICCPR), to which Cambodia is a party, provides in article 19 for certain restrictions on the right to freedom of expression, but only those that are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
In this regard, the United Nations Human Rights Committee, the international expert body that monitors compliance with the ICCPR, has stated in its general comment no. 34 that freedom of expression is a “foundation stone for every free and democratic society” and a “necessary condition for the realization of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights.” The comment affirms that freedom of expression includes political discourse and discussion of human rights, and in particular “that in circumstances of public debate concerning figures in the political domain, the value placed by the Covenant upon uninhibited expression is particularly high. Thus, the mere fact that statements are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties.” The principle is that “all public figures … are legitimately subject to criticism.” Defamation laws must “not serve, in practice, to stifle freedom of expression.” With respect to contempt of court proceedings, “such proceedings and the penalty imposed must be shown to be warranted in the exercise of a court’s power to maintain orderly proceedings.” However, “[s]uch proceedings should not in any way be used to restrict the legitimate exercise of defence rights.”
The UN Declaration on Human Rights Defenders provides in article 9 that everyone has the right “[t]o complain about the policies and actions of individual officials and governmental bodies with regard to violations of human rights and fundamental freedoms, by petition or other appropriate means, to competent domestic judicial, administrative or legislative authorities,” and in article 16 that “[i]ndividuals, non-governmental organizations and relevant institutions have an important role to play in contributing to making the public more aware of questions relating to all human rights and fundamental freedoms.”
In situations where judicial or other corruption is indicated, article 13 of the UN Convention against Corruption, which Cambodia ratified in 2007, commits governments to “promote the active participation of individuals and groups outside the public sector, such as civil society, non-governmental organizations and community-based organizations, in the prevention of and the fight against corruption and to raise public awareness regarding the existence, causes and gravity of and the threat posed by corruption,” and to “respecting, promoting and protecting the freedom to seek, receive, publish and disseminate information concerning corruption,” subject only to the qualifications laid down in article 19 of the ICCPR.
A further explanation of such protections is contained in the 1995 Johannesburg Principles on National Security, Freedom of Expression and Access to Information. Principle 2 provides that a restriction on freedom of expression is illegitimate if its purpose or demonstrable effect is “to protect a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions.”
This position underlines other standards established at the international level, such as article 10 of the European Convention on Human Rights, which is subject to authoritative interpretation by the European Court of Human Rights. On April 23, the court ruled in favor of freedom to criticize the judiciary in a judgment on a case, Morice v. France, with many similarities to that of Ny Chakrya, as the relevant Cambodian law is closely based on that of France dealing with defamation, malicious denunciation, and pressuring the judiciary.
Although article 10 of the European Convention includes a provision stating that the right to freedom of expression may be qualified in order to maintain “the authority and impartiality of the judiciary,” it specifies such restrictions must be only those that are “necessary in a democratic society.” The Morice judgment affirmed that the convention’s restrictions cannot be used to enforce limitations generally on “remarks on the functioning of the judiciary, even in the context of proceedings that are still pending.” The court ruled that it must be possible “to draw the public’s attention to potential shortcomings in the justice system.” Protecting the judiciary from unfounded attacks “cannot have the effect of prohibiting individuals from expressing their views, through value judgments with a sufficient factual basis, on matters of public interest related to the functioning of the justice system, or of banning any criticism of the latter.” Convicting a critic of a crime for doing so would not “serve to maintain the authority of the judiciary.”
In Cambodia, there is compelling evidence of an urgent need for critical commentary on the judiciary to promote a democratic society characterized by the rule of law, including courts free of politically motivated government interference and corruption.
The current Cambodian judiciary has been under the political domination of the ruling Cambodian People’s Party (CPP) since 1979 and answers to the dictates of Prime Minister Hun Sen, in that post since 1985. While some judges occasionally act independently of the wishes of powerful CPP figures, this exceptional behavior is negated by the overall political subservience of the judicial system and is sometimes punished outright. Judicial sources who have spoken to Human Rights Watch say members of the judiciary seen by the government as resistant to political control have been repeatedly passed over for promotions or otherwise marginalized, sometimes being forced into de facto retirement, while those most loyal to the political and economic agendas of the CPP elite have been promoted. Prosecutors and judges have long been and remain mired in corruption, and almost all have been immune from action by the courts and the government’s Anti-Corruption Unit.
A 2014 Transparency International Cambodia report on corruption in the country found the judiciary to be the weakest part of the country’s generally weak “national integrity system.” It said the courts were plagued by political influence and endemic corruption, both making them highly vulnerable to outside interests. The existence of this judicial system pervaded by bribery and political influence was cited as a key cause of lack of confidence in the government and a main problem standing in the way of meaningful political reform, which the report said could only be addressed by being “tackled head on.”
Against this background, the most recent comprehensive survey of political public opinion in Cambodia, by the International Republican Institute in 2013, found that “making the judiciary system fair and independent” was the most important issue for Cambodians wanting “to push Cambodia to a free and fair democracy,” and the second most important issue was “freedom of speech.” Conversely, increasing corruption was the most important reason why people felt Cambodia was “headed in the wrong direction.”
In January 2015, the UN special rapporteur on the situation of human rights in Cambodia stated that “the courts of Cambodia have not delivered justice in the way demanded by all Cambodians.” This was because the judiciary is being “used to protect the interests of the rich and powerful,” including those of private companies driving the poor off their land, and at the same time “as a means to intimidate those perceived to be critical of the government.” The special rapporteur said the necessary remedy to this situation is to “ensure that all court decisions are based on material evidence and sound legal reasoning, taken by judges who have no ties (personal, financial or otherwise) to the executive or to either party in the cases they adjudicate.”